Cracking the speech code

When the University of Wisconsin sat down to evaluate its repressive faculty speech code, nobody expected free speech to win. Here's how it happened.

For some 15 dark years, American academia has acquiesced in, if not demanded, the suppression of its most fundamental rights. Speech codes--the "verbal conduct" restrictions in colleges' "harassment" policies--have been pervasive on our campuses.

During this time, there have been a few minor free speech victories. On some campuses, defenders of liberty modified the worst aspects of speech restrictions; on others, students or faculty used media attention and ridicule to force administrators to abandon the most embarrassing parts of their codes. At a few state schools, students sued for their constitutional rights and won. Now, however, a faculty has itself voted to restore its freedom of speech. On March 1, 1999, the Faculty Senate of the University of Wisconsin at Madison surprised almost everyone by voting to abolish the code that had regulated professors' speech for more than a decade.

For a year and a half, Wisconsin had been weighing only two choices: to keep or to modify the code. No one thought that there could be a successful third option: free speech. Liberty's at least temporary victory in Madison, won with the telling involvement of students, had its own context, its revealing contingencies, and, above all, its heroes.

A Winnowing Tradition

The difficulty of restoring free speech at Wisconsin is ironic, given the school's dramatic history of academic freedom. In 1894, Oliver E. Wells, a member of the state Board of Regents, charged Professor Richard T. Ely with teaching and advocating "socialism." The board appointed a committee to examine the charges.

Ely was not a stalwart defender of the values that his case came to represent. He allowed that if the charges were true, he should be dismissed, but he denied that he was a "socialist" at all. The committee, however, went beyond Ely's agenda. It not only exonerated him, but proclaimed the value of a campus where one could express oneself without fear: "Whatever be the limitations which trammel inquiry elsewhere, we believe that the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found."

That commitment to "fearless sifting and winnowing" survived the state's unlamented senator, Joseph McCarthy, but it could not survive political correctness. By 1989, the threat to academic freedom at Wisconsin came from the administration and faculty. Equating "racist" and "sexist" speech with discrimination by race and sex, a faculty committee dominated by law school professors drew up a "code" that banned "racist or discriminatory comments, epithets or other expressive behavior," in "non-academic matters" that were either "directed at an individual or on separate occasions at different individuals." The code gave specific protection to discussions of group characteristics in the classroom, and it explicitly exempted the faculty.

The law professors reassured the university that the code was wholly constitutional, and Chancellor Donna Shalala (now President Clinton's secretary of health and human services) enthusiastically and successfully urged the Board of Regents to adopt it. A group of students, however, supported by the American Civil Liberties Union, challenged the code, and a federal district court declared it manifestly unconstitutional in 1991.

As a result, most Wisconsin faculty members assumed that they enjoyed full freedom of expression within the law. They were wrong. They were still governed by a separate policy, "Prohibited Harassment: Definitions and Rules Governing the Conduct of UW-Madison Faculty and Academic Staff."

This code, drafted in 1981 and given its final form in 1989, prohibited "harmful" speech in both "noninstructional" and "instructional" settings. The latter category, which included speech in classrooms, laboratories, on field trips, and in academic offices, was more protected. Let us, then, examine the policy in its least repressive guise.

Discipline and Punish

The UW code forbade "demeaning verbal and other expressive behavior." The phrase expressive behavior included conduct "through which a faculty or academic staff member seeks to communicate with students...[including] but not limited to the use of visual materials, oral and written statements, and assignment of visual, recorded, or written materials." The policy claimed to "protect" the "selection of instructional materials," any "opinion or statement germane to the subject matter of the course in which the behavior occurred," and "expressive behavior related to teaching techniques."

The code existed, however, among other reasons, precisely to permit a faculty member to be charged and "disciplined" for those specific "protected" behaviors. Thus, one's selection of instructional materials lost protection if the claim of germaneness was "clearly unreasonable." The claim of germaneness itself lost protection if it, in turn, was "clearly unreasonable." One's teaching techniques lost protection if "an appropriate hearing or review [found] clearly unreasonable the...claim that the objective cannot be accomplished as effectively by techniques less likely to cause harm."

Everything lost protection if the hearing rejected the claim of protection and found that the behavior was a) "commonly considered by persons of a particular gender, race, cultural background, ethnicity, sexual orientation, or handicap to be demeaning to members of that group"; b) occurred after a prior request not to engage in that conduct "or conduct of substantially the same kind"; and c) the conduct either "interfere[d] with" the student's academic work or made the instructional setting "hostile, or intimidating, or demeaning to members of the group of average sensibilities."

Wholly unprotected, also, were "epithets, comments, or gestures" that demeaned on the basis of "gender, race, cultural background, ethnicity, sexual orientation, or handicap condition," subject, again, to the double criteria of what a group found "disparaging to members of that group" and either interference with "learning or other academic performance" or the creation of a "hostile or intimidating, or demeaning" environment. The policy did not require any proof of intent in instructional harassment.

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